2 Alterity: About Rules, For Example PIERRE LEGRAND™ [Ali accepted judicial decision in the commen law... is an abject for Fur: ther articulation and specication under new or more esingent conditions Thomas S Koha! ‘The task of the comparstist isto lift himself out of his mundane existence and fo attempt an ‘appropriation of the foreign’, to confront the enigmatical as he discerns it in other legal cultures inthe full knowledge that the study of diffe: ent lifeworlds will tax his empachic powers. Beyond the challenge to the foundational assumptions by which he leads his legal life within his local com- munity, the comparatist must engage in the hermeneutical act that will allow him, through his intrusion into alien forms of discourse, to decipher and expli cate a range of phenomena that appear inhospitable to interpretation. The point snot, of course, the effacement of ambignity because what it eels like to under- scand as a French lawyer will always remain for the English comparatist 2 matter of more or less distant conjecture, Rather, the comparatist aims to demonstrate that the discursive practices and the mental representations operating within a legal culture, often at a level beneath consciousness, are able to serve as a focus for speculative inquiry into significance in that they can cor smunicate the specific legal and cultural sensibility of a given interpretive com- munity. The main objectives of the comparatist, then, must be to understand why a particular legal culeure has been attracted to a particular genre of culcural product and to capture the trajectory of epistemological justification thar hhas been followed by chat culture. Why, in other words, has a legal culture developed a characteristic pattern of social and epistemological legitimation? An initial step, for the comparatist who proposes to conduct such an episte- mological inquiry into legal rationalities with specific reference to the civil law and common law traditions as they have materialized in Europe, is to appreci ate that he will encounter a radical difference between them. In the way these * Bernaed Rudden once old me thatthe cormprate es ensls digger who, though he oes stoualy Sis something dat gles, early kes gold. Ween ory enor with abiding respec nd fond affesion, this essay colebraes he dark prod foreane ofthe digrnslf and ere the treo. "The Siractur of Scieiic Revolutions (ed ee, Chicago: Univerty of Chicago Pres, 1970) 2. 3 MA Schnider, Cultura and Enchantment (Chica University of Chicage Pes » See my European Legal systems Are Not Converging (1995) 45 1CLQ 32 1985) 64,a Pierre Legrand two legal traditions reflect sw0 modes of experiencing the worl, I argue that even the most sophisticated comparative analysis originating from one tradition will, ukimacely, fal wo cross epistemological boundaries. In the absence of shared epistemological premises, the civil law and common law worlds cannot enjoy an exchange that would lead toa complete understanding of one another. {I epeat that my focus is epistemological; am not concerned with dectinal oc instcutional developments in the sense that | do not ask, for instance, whether posived Italian law acknowledges anything resembling posited English law's ‘criterion of reasonableness inthe computation of contractual damages.) wish co explore, by way of illustration ofthe epistemological incommensu- sabilty Laddress, the crucial distinction acising between civil law and common Jaw experiences as regards the character of rules. The notion of ‘ule’ has given rise to a considerable number of attempts at defniion and ic would seem futile vo add wo tha ‘ul normative weight: the rule provides either a cause or a reason for action so tha there is a disposition to x stement is of general application and carries & Both attributes feature in the following form, which T take to be exemplary of canonicity: if certain conditions are satisfied, then something follows. In the light ofthese i that The question for fecermination in this essay is, however, whether the common law also consists of rules, my focus being on English law—the mose immediately celevant com ‘mon law experience for European jurists” If they exist, commen law rules must arise either from the discrete decisions themselves (one decision = one rule) or from series of decisions (many decisions = one rule), shall fuse con he single decision «Ep Rev, Frociza Resson and Nore (Londons Hatchineon (975) 8, 5 id + Fora more detaled corsideraion ofthe cul law's epistemological profile with pei refer: cence the faith of eae legal communities in the probative efficaty of propoctonal enced, Se iny "Antiguo ci aban’ (195) 48 U TorortoL] 311. 5'No all the cbeeratons that folow wovld apply equilly forcefully to dhe United State. As ‘Mitchel Lasser ilasraes, che United Sates Supreme Court fr instance, ready forlaes "est" ‘Lie. Theory” Da to she Text A Comparative Literary Analyst of American adie Tees ad French Judicial Dscoure’ (1998) 111 Harvard L Rev 689, Buc ce 49 below, Fora dacssion of conzepions of ules prevailing in English and American aw, see BS Aeiysh and RS Summers, Fam land Substance ba Anglo-American Law (Oxford: Onford University Press, 1997 5-33,Alterity: About Rules, For Example B ATT 2 en: purr 0 Hadley v Baxendale’ or ‘the cule in Rylands v Pleicher in English textbooks and law reviews? The answer to this question must begin with an observation that Tanguage of Blackburn J in Ryland v sted co posit a rule: “We chink that umd, 1s to cry cases: in civil cases, to adjudicace upon disputes between litigants, and in criminal cases, co secure a fair trial of the accused by jury’."°1a Westdeutsche Landeshank Girozentrale v Islington LBC, Lord Goff cecalls how *[g]he function of {the House of Lords] is simply to decide the questions at issue before ein che present case’. Making reference to an eatlicr decision, he states: ‘le is... apparent from the reasoning of the [judges] that chey regarded § FSchaser, “Opinions a Rae! (1995) 62 U ChicegpL Rev 1455, 70. 856) LR 1 Be 268,273 2 R Gol The Seech fr Princile’ (1933) 59 Proceding ofthe Bish Academy 169, 170 [up9e] ACs 585, HL. See als og Broce v Carsell © Co 1972) AC 1027, 1085, HL: nat the freon of the House of Lerda| er indeed a any judges o frame Sedsiton rte lay down, dnud and fst es’ (Lore Retr» Guan Assurance pe (195) 2AC 296,354, HL Some ofthe atements have mace! appeesiae coud be applied to aslogows stuatons: However 1d fot intel to expres any view ilter way s9so what wl be the postin in hose snulogous aia THLe“Thecareiatonsl ale ofthe court co decide dipate and rant reed onal role and adopting «le saciee ra ‘rd Hobheunel © [96 ©, 2 Ex Masterson Holden (3986) 1 WLR 1017, 1963, QB; Rebers Petrelaum Led v Barnard ‘Kenny Lad 1983] 2AC 172,201, 13 Mars » George Prank (Testes) Led (1975) AC 485,481, HIE Read J Tyons c= Co 1947) AC 156,175, HL24 Pierre Legrand of dealing with individual cases could reach out beyond them to the establish- ‘mnt of general principles’ The point is explicared further by Tony Honoré: The | ocho sets aussie “rule in Ralende Nexis «rupee tle 5 oT An example should help to show that, habitual language notwithstand- Mestre is no ‘rule in a case like Rylandsv Fletcher and that such a decision does not, as far as subsequent judges are concerned, enunciate any canonical proposition. In Rylands, Blackburn J observed as follows: ‘the person who for his own purposes brings on his lands and collects and keeps there anything likely todo mischicff it excapes, mast ep itn at hs peril, and, if he docs not do 36, is prima faci answerable forall te damage which isthe natural consequence of es escape’. This statement is conventionally understood as erabodying the ‘rule’ in Rylandsw Fletcher.” At this junctare, | ish ro introduce a recent dec sion ro establish how even such a seemingly wellentrenched formation is, in practice, apprehended as being discardablo—and in, in face liberally Goff "the Search for Princip’ (1983) 6 Frocedings ofthe Btsh Academy 163, 185-186. © CEM Oskeshow, Ratinalion i Peltis (London: Methuen, 1962) @. * GC O'Brien ed) E Burke, Reflections on te Kevolon i France (London: Peagain. 1968) 197 1178030 Pierre Legrand to the second branch of the argument. The contention ean best be addressed as follows (he words are Frederick Schauee’s) ‘the ability to extract ¢ rule from a series of cates is impeded by the phenomenon of underdecermination. No one ruleis uniquely derivable from the series of previous decisions, and thus 2 mul- Siplicey of exteasionally divergent rules would satisfy the constraint of being compatible with all of the members of thas series! Consider the judicial da. sions in McLoughlin v O'Brian, Attia v British Gas ple,* Alcock w Chief Constable of South Yorkshire Police’ and Frost v Chief Constable of South Yorkshire Police.** To borrow from the language of an appellate judge, ‘(all these cates depend on their own faces and render generalisrions—tempting though they may be 1 the legal or socal analyst—wholly out of place’ In che words of Tim Murphy, ‘adjudication furctions in terms of a plurality of crea: laning instances and exmples, hints and suggestions, allusions and inrsitions, which in some sense always defer the “ral shing”™'** And even renditions by Inter judges of patterns which they perceived as having emerged from discrete and particulanstc judicial interventions could be netionally understood as “rales, such apprehensions would not mean that common law decisions state rules. There is an important distincsion herween incerpreters of judicial deci- sions stating that judicial decisions state a rule and judicial decisions eating a rule. In any event, any such ‘rule’ would have ro be formulated in 2 case. As maintain, however, no individval cae canbe regarded as statinga ‘rule’ at com- smon law. Hence: ‘To represent [the common law] asa systemacic structure of, rules is to distor it itis to represenc as stacic what is essentially dynamic and constantly shifting.” 1 F Schauer, Playing by the Rules (Oxford: Oxford Unvesiy Pres, 191) 16-185, © (1983) AC 410. HE 11988 QB 304, CA, (1952) 1AC 319,HL. “ (2) 2AC-5,1iL, © Re T(A Minor) (1997) 1 WLR 242.284, CA (Waite L). See ako Caparo Industries ple» Dickman [1990] 2 AC 605, 635, FL: "the most ha aa be ateapeed isa broad categorisation ofthe feced eases according the rye of stuavon in which lability has bet established nthe past brderto founda argument by aneogy” (Lod Ove). WT Murphy, The Oldert Socal Sience? (Oxon: Oxford University Pres, 197) 113. ‘Two Amencan judges express ha point wel Sec OW Holmes, "Coda and dhe Arrangement ofthe Law" (1931) $4 Harvard L Rew 725,728: judge-madelaw [sneer sushentsly promsixted fs rales, bus [] lef tobe lnered feom eases (1870) } Franky Law andthe Modern Mind (New York: Cowatd:MeCanr, 159) 127-108 “The Busines ofthe jages i fo dee parca cases ‘Theysor some third penton viewing thee handverk, tay choose to gncialne roe these decane inthe cases of Fox vs. Grapes and Hee vs. Haw and desc the convo elements a “rales” But ‘hove leerpioneofaleged common cements ae stbessomeaide luyersin gacesing cr beng ‘ng about fearejdiial conduct or some belt iadgesinseing other disputes. The rls dlzecely decide any other cure in sny given way, nor authorcatiely compel the judges to desk those other asesin any ven waYsnor make i poss bl for lawyers to bring i above that te adses will decide any other cases in ery given way, nor inal to predict how the judges wll dese any lrher cases. Thea, therefore, consis of cestons, not of rls (195), 30°) Posse, Bentham and the Connon Law Tradeion (Oxfords Oxioed University Pres, 1986) I, See also TM Cooper The Commoa ind the vl Liw—A Seo" View (1950 63 Harvard Rev 46t, 10, who note that dhe commen la judge operates lei amulande.Alterity: About Rules, For Example 34 An appreciation of the common law may be reinforced through a cursory con~ trast with civil law systems which, as [ remarked previously. feature a different - however, mpha- size a schematic patrern—which canbe traced tothe Galan institutional model — whereby the normative coherence of « given ordering of regulae ire is key. A civil code, for example, isa cosmology. Ie aests to an effort to rotalize oft poo dace absoluce knowledge educed co categories, typologies, and polarities, With a code, the world is abstracted thzo The words used in a code, beyond covering a whole area of law, account for the whole field of possibility: "The result is 2 body of scholarly literature shat seeks to create doctrinal consistenc; similar ro the organic incegration of the cede itself and judicial opinions tha the “if-then’ type.” ‘To talke of common law ‘rules’ (orto refer tos cout ruling’) is, therefore, to regen" erative prinel Law, the ‘normative - The only sense in which one can speak of common Taw decisions as rules is as ‘rales of thumb.»* Not susprisingly, Schaver aprly, concludes that ‘it hardly pays to speak of them as rules at all?” One will 5 See | Dewey, Logical Method and Lew’ (1924) 10Coenll LQ 17 % Rosen, The anropology of user Cambridae: Cambeie Universy Press, 1989) 5S. 1 This quslificarion i nor cll into querdon by the uc thar a Pal Ricoeur scree, ert slays remains stu’ between the cates ruleaac ts appliation so thatthe concrete (ud fecson sitadepsthe rele of = ure seston, always fll am iterprsve ole: Riceear, Phlosopbie de a vols: Levalowatre ei Civoloatare (Pai: Abie, 1950 16S “Murphy (e 48 above) 15 's TSchauet, Playing by he Rules (Oxford Oxford Univesity ees, 1981) 177-See algo Visine, ‘The Authortetive adhe Authorteran (Chicago: Unversity of Chisago Pest 1986) 45,°Whas ae ‘led “the tues laid dows by a ceeton” are verbal focrlatios o he rensonseelied upon by ‘ecsicn maker in making the decison. Those reasons are values iportance any decision maker ‘signa puri cole necessary gives relate weighs to then inating spartetla deco ‘= FSchauer, "she Common Law lw? (1985) 77 Calfomia L Rev #55458 7 ibid 458,32 Pierre Legrand accordingly find contemporary philosophers,"* historians."° and com aratists,“° who have all explicitly stated hae th <:Alicady, though, Dentham had reached a similar fe should greatly matter to a comparatist chat English lawyers and scholars who have considered the issue do not themselves think of the common law ia terms of rules. A meaningful understanding of common law thought must com swat David Sugarman calls 1 18 simply to project the attempt to caprure the local sociological colour of the common law’ of law and of law-in-society shoves inadequate knowledge of their observation and lack of empathy for it. To be sue expe ‘object’ of ‘mind as they garner renewed awareness and heightened respect for the common law's idiosyncratic experience of legal ordering. This enhanced appreciasion, in turn, will benefit from an awareness of sociological fndings to the effect chat the English ‘feel defintely uncomforcable with systems of rigid rules, that there is even ro be found in England ‘an emotional horror of formal rules’, and thatthe English ‘pride themselves that meny problems can be solved without formal rules'4 Afterall, ‘the specific egal practices of 2 culture are simply dialects of 2 parent social speech’ and there is no reason why a legal culture should be ‘expected to ‘depart drastically from the common stock of understanding in the surrounding euleure’ 6° Civilians muse secept, ultimately, that while they are ‘here’, the other that is the commen law tradition is ‘elsewhere’, that ‘here’ is not interchangeable with ‘elsewhere’, and chat wha lies ‘elsewhere’ deserves to be elucidated, as much a8 possible, om ts own terms—which, incidentally, requires one to travel, sojourn, © EgNE Simmonds, The Decline of frie! Reavon (Manchester: Manchese: Univers Pres, 1999) Te, > EgAWE Sirapon, The Common Law and Legal Theo" Legel Theory and Legal History: £ssg}s0n1he Coremon Law (London Hambledon Pes, 197) 46-38, Behr, Sonpuen wets thar the common law, sabe «good lerice, i ever sap, nein to Lane (Onna: Blakely, 8 73. © Eg C} Hamsen, “The Comparative Srady of Law’ in C] Hamson and TET Pluckret, The Lenplish Trial and Comparative Law (Cambrdse Helfer and Sone, 1950) 9; J& Jolowicn, pinéraleda drow anglais in JA Jolowice od), Drove anglais (Pai: Dalles, 1996) $860, SR Cotterell, The Plits of lurspradence (London: Brterwors, 1989) 22 {© JBeetham, A Consent onthe Commentaries Onford: Onfod University ress 1928) 1256 wisi, © D Sugarman, In the Spin of Weber: Lae, Medertity, and “The Pearce ofthe English” (ese or Lenl ee, Ueney fsei-Madon La Schoo 985 1nd 38 espe 3G Hate Culnes ond Oronsaton (Londo: MeGrew-Hl 1991) 15, 121 and 12, respectively RW Gordon, “Cetieal Lege Histories (984) 36 Stanford L Rev $7, 90,Alterity: About Rules, For Example 33 and immerse oneself ‘elsewhere’. Only then can a genuine dialogue across legal traditions be sustained. Thus does the comparatist find himself constantly strad- dling the ‘crossroads of separations’ © § Arcaud Feagmeres dun journal Sener! in Ocsurescomplite | Pasin Gallimard, 1976) 15 (arvefour des separations) [936).